Fact Check Units: Need For Regulations On Privacy And Competition Rather Than Content Control Say Legal Experts

The Indian government’s efforts to regulate digital content have sparked significant debate on free speech, censorship and the role of the State in managing dissemination of information online. The Bombay High Court recently gave a strong verdict against executive overreach in content regulation, marking a crucial moment for digital governance in the country.

Striking down Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules,  2023. Justice Atul Chandurkar was of the view that the amendment is violative of Article 14 and Article 19 of the Constitution of India.

For the unversed, Rule 3(1)(b)(v) granted controversial powers to the government to set up Fact Check Units (FCUs). These FCUs were authorised to identify and control the dissemination of any digital content deemed fake or misleading related to government business. As explained by the petitioner’s counsel during the court proceedings, the novel looking provision to combat fake news has its own share of ramifications. 

“WHO may say 50 lakh people died of Covid. India says only 5 lakh died. FCU says what WHO claims is false. See how governments will be shielded?, Senior Advocate Navroz Seervai was reportedly quoted as saying before the High Court.

Government cannot be arbiter of truth

In recent years, India’s regulatory framework for digital content creation has been riddled with umpteen instances of executive inference. From downplaying reports during Covid 19 to targeting opposition leaders in the name of flagging fake content, Modi Government’s content moderation initiatives have received flak on account of being lopsided and arbitrary.

Calling the system rife with executive interference, Mishi Choudhary, Founder of Software Freedom Law Centre India (SFLC.in) says, "India has established an extensive system of Executive interference through Rules where the Government has control and power over content." She argues that most democracies follow a notice-and-takedown mechanism, where content flagged as problematic is removed after judicial oversight or by platforms themselves without direct government involvement. However, India's model places the government at the centre of content regulation, creating a chilling effect on free expression.

A government cannot be the arbiter of truth, she notes, adding that the decision is especially timely in an age where the use of Generative AI can amplify misinformation but should not be an excuse for executive overreach.

The fight for free speech 

In recent years, the fight for free speech on online platforms has escalated disproportionately. 

Fraught with controversies, the Indian digital landscape has witnessed numerous cases of internet shutdowns, a spyware scandal, a dramatic Twitter vs Government of India battle while the world was transitioning to a new normal. If numbers tell a story, a report by ‘Rights and Risks Analysis Group’ claims that at least 55 journalists have been arrested over allegations of spreading misinformation in the last four years.  If misinformation is spreading like wildfire, news mills are rife with reported cases of political propaganda on social media platforms during government elections. In a survey by Reuter's institute, more than 64 % of Indians expressed concerns over the government's Involvement in regulating online news through tools such as fact check  units. 

Coming to the legal standpoint, the Bombay High Court’s ruling emphasises the constitutional conflict that the Fact-Check units pose. Aparajita Rana, Partner at AZB & Partners, asserts that government control over fact checking violates fundamental rights. The court found the provision to be a disproportionate restriction on free speech and expression under Article 19 (1), while also violating Article’s 14’s principles of justice and independence.

“The judgement ensures that platforms no longer have to restrict user content merely because it does not align with government endorsed truths, especially without the burden of a fact checking process. The decision strengthens the safe harbour protections that platforms need to operate freely and without fear of legal liability for user-generated content,” says Rana.

The ruling sets a critical precedent on how Article 19(2), which permits reasonable restrictions on free speech, should be narrowly interpreted. The court emphasised that the government has no additional obligation to control access to the truth as defined by its own agencies. 

Stifling effect of over-regulation on creativity and innovation

From OTT shows getting canned owing to the fear of showcasing dissent to a startup halting its aspirations of creating a decentralised social media platform, India has witnessed untapped potential going down the drain. 

Reason: A crippling fear of compliance and the government's seemingly controlling policy around content moderation.

One of the most critical consequences of government interference in digital content regulation is its impact on innovation. India has long prided itself on its burgeoning tech industry and entrepreneurial spirit, however, Chaudhary stresses how vague and overreaching laws stifle innovation. The constant burden of dealing with this structure is enough to keep innovative businesses from experimentation and innovation, she says, pointing out the chilling effect that  unclear laws have on platform companies and FOSS (Free and open-source software).

The mismatch between various rules and regulations, she adds; hasn’t resulted in the effective removal of misinformation but instead led to the eradication of speech. This regulatory ambiguity pushes platforms to remove content proactively, out of fear of violating government guidelines, which creates a sensitised and heavily controlled digital ecosystem.

A way forward: Light handed regulation and clear guardrails

With the Bombay High Court’s ruling setting the tone, the question remains; what does the future of digital governance in India look like? 

Both experts agree that a clear and light handed regulatory approach is essential. 

Rana suggests that rather than giving the government the power to directly fact check content, intermediaries can rely on independent agencies like the press information bureau or other reliable government sources for factual verification. Given the context of the case, content like political satire, which is context driven and often subjective, should not be put within the confines of government scrutiny or arbitrary tests of accuracy. 

"Fact-checking of content that qualifies as political satire must be subject to a different non-interventionist approach, failing which it may qualify as an illegal restraint on free speech," she notes.

Choudhary echoes this sentiment, emphasising the need for regulations that focus on privacy and competition, rather than content control. She advocates for a system where companies are not coerced into compliance with vaguely written laws that could lead to the suppression of dissent or the monopolisation of narrative control by the government. 

In conclusion, Bombay HC’s judgement reinforces the principle that governments should not have the power to unilaterally determine the truth or regulate user generated content. As India continues to navigate its digital governance landscape, the judgement sets an important precedent for the creation of laws that upholding the constitutional rights while still addressing the legitimate need for regulating misinformation in the digital age. Moving forward, a balanced, transparent and light headed approach to regulation is key to ensuring that digital platforms remain spaces for free expression, innovation and diverse viewpoints.